The Case For DisBarrment

Attorney General William Barr has only held that position for less than ten months. Yet, in that time, he has managed to substantially weaken the traditional independence of the Department of Justice and used that agency’s resources to essentially become an essential part of Trump’s legal defense team. Barr’s expansive view of executive power under the rubric of the “unitary executive” has provided cover for Trump’s broad denial of the legitimacy of congressional oversight and a brazen and dangerous attack on the separation of powers.

Barr’s attitude toward congressional, and specifically Democratic, oversight was displayed even before he was actually confirmed. He actually claimed he could not meet with Democratic Senators and Judiciary Committee members Amy Klobuchar and Richard Blumenthal until after his confirmation hearings because of the government shutdown. Klobuchar reported that this was the first judicial nominee that had ever refused to meet with her. At the same time he was telling those Democrats he could not with them, he was actually meeting with Republican Senators. Barr caved and met with the Senators only after his hypocrisy became public, but he had made his attitude about Democratic oversight quite clear.

During those confirmation hearings, Barr basically sidestepped a direct question from Kamala Harris on whether “the president or anyone at the White House ever asked or suggested that you open an investigation of anyone?” And, in fact, a couple of months after Barr’s confirmation, Trump was asking for DOJ investigations of Hillary Clinton and John Kerry, hinting that those requests had been rebuffed by saying “My people don’t want to do anything”. A more important question in light of the ongoing impeachment process is whether Trump had also discussed investigating Joe Biden with Barr before his confirmation. We certainly know Trump began to indicate a concern about a Biden challenge and Giuliani had already started to focus on Biden around the time of Barr’s confirmation. In addition, we also know that Trump asked Zelensky to work with both Giuliani and Barr as part of his extortion attempt. All of these fraudulent investigations certainly make Barr’s obfuscatory answer to Harris even more problematic.

Upon being confirmed, Barr’s first two significant acts were to lie to the American people about the conclusions of the Mueller report and caving to Trump’s wishes by overthrowing decades of precedent by not defending an existing law passed by Congress and signed into law by a previous President. As I wrote in March 2019, “The first clause of the mission statement of the Department of Justice is ‘[t]o enforce the law and defend the interests of the United States according to the law’. That has historically meant defending existing law from legal challenges even if the administration currently in power may object and oppose that law as its own policy as long as reasonable arguments can be made for the law’s constitutionality”. Barr immediately discarded this precedent by switching sides in the ridiculous case in the Fifth Circuit involving Obamacare and supporting the plaintiffs case that the entire ACA was unconstitutional because Congress had reduced the individual mandate penalty to zero. Barr himself, if he can be really be believed, apparently thought the plaintiff’s case was weak but nonetheless joined it simply because President Trump wanted to kill Obamacare. So, almost from very start of his tenure, Barr was complicit with Trump in attacking the separation of powers and the idea that the President and the DOJ should faithfully execute the law. Instead, both Trump and Barr treated the law as something that the President could simply decide to ignore or attack based on a whim.

Barr’s decision on the ACA paled in comparison to his mishandling of the Mueller report. Mueller himself declared that Barr had misrepresented the report’s findings, writing that Barr’s summary “did not fully capture the context, nature, and substance of this Office’s work and conclusion. There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations”. Confusion and undermining confidence were, of course, exactly what Barr and Trump were specifically trying to accomplish.

Barr’s summary and subsequent statement to the press took quotes from the report out of context; declared there was “no collusion” when Mueller in fact specifically stated he did not look at collusion but conspiracy instead; declared there was no obstruction of justice when Mueller specifically outlined ten discreet instances; declared that Trump had “fully cooperated with the special counsel’s investigation” when in fact Trump had refused to answer certain Mueller questions and, as Stone’s trail subsequently highlighted, Trump lied in his response to others. Moreover, Barr used the fact that Mueller felt bound by the OLC memo that prohibited the President from being indicted in order to step in and essentially exonerate the President instead.

In addition, there was no reason for Barr to interject himself into the process to begin with. Yes, the Special Counsel delivers his report to the Attorney General, nominally his boss. But Barr took it upon himself to delay the report’s release so that he could not only misrepresent it but also insert redactions that ended up protecting Trump and certain individuals close to him. The Roger Stone trial certainly highlighted not only how Barr’s redactions helped minimize the damage to Trump but also how broadly the Mueller investigation was obstructed. Evidence in the Stone trial showed far more numerous direct contacts between Stone and Trump and the Trump campaign regarding Wikileaks. In addition, Mueller was unable to gather certain critical evidence because witnesses such as Bannon, Erik Prince, and Stone all apparently destroyed potential evidence by deleting text messages. Stone himself lied to Congress and refused to answer Mueller’s questions.

Having effectively sabotaged the Mueller report, Barr then took up Trump’s demand to begin the investigation of the investigators. In April, he told a Senate committee that he believed that Trump had been spied upon by the intelligence community. This is just another conspiracy theory from the fevered swamps of the far right that is designed to discredit the Russia investigation as a whole and provide an excuse for Trump to lift the sanctions on Russia. In May, Barr appointed John Durham, US Attorney for Connecticut, to lead yet another investigation into the origins of the Russia investigation. This was a curious decision because not only had Mueller and a prior DOJ investigation found no evidence of this “spying” activity but also because there was already an ongoing investigation by the DOJ’s Inspector General that was looking into the very issue.

Durham may have been the nominal head of this new investigation but it soon became clear that Barr was actually running the investigation and seemingly its lead investigator as well. Barr, apparently ignoring standard diplomatic protocol on occasion, has traveled to Italy twice, made inquiries to the British, and had Trump make a request to the Australians, all in an effort to somehow discredit the US intelligence services’ investigation of Russian interference in the 2016 election. Barr’s efforts in Italy apparently so annoyed the Italians that the Prime Minister released a public statement saying “Our intelligence is completely unrelated to the so-called Russiagate and that has been made clear”, effectively neutering Barr’s efforts in that country.

It is now apparent that Barr had no real evidentiary predicate for starting this redundant investigation into the origins of the Russia investigation or his stated belief that the Trump campaign had been spied on, other than perhaps musings from Fox News. The Inspector General (IG) is reportedly ready to release the results of his investigation and it concludes that the intelligence community acted appropriately in that investigation with the exception of minor process errors in a FISA application. In addition, the IG apparently also states that he contacted Durham to see if he had any information that would contradict his conclusions and Durham did not. But even a total lack of evidence, even from his own investigation, will not stop Barr from pursuing this conspiracy theory on Trump’s behalf, with Barr still insisting that evidence to support it exists out there somehow, somewhere. As emptywheel notes, it is looking more and more like Barr’s investigation into the origins of the Russia investigation is just another part of Trump’s disinformation campaign designed to get himself re-elected.

To show just how much distrust there is of Barr even within the DOJ, reporters have been strongly hinting that the reason the conclusions of the IG report have leaked prior to its public release was to prevent Barr from characterizing the report in the same way he mischaracterized the Mueller report.

Barr has also been willing to use DOJ resources to defend Trump even in cases where the government has no real interest. The House has subpoenaed Trump’s financial records from the accounting firm Mazars. These might seem relevant considering that Michael Cohen has testified under oath that the Trump Organization routinely engaged in tax, insurance, and bank fraud. Those accusations have been backed up by investigative reporting from ProPublica. In addition, the House was also looking for potential evidence of violations of the Emoluments Clause. Trump fought the subpoena using his personal lawyers. There was no federal law to defend and no reason for the DOJ to defend the President against Congress. Yet Barr had the DOJ file an amicus brief in support of Trump using arguments that Mark Joseph Stern described as “flabbergasting” in their ridiculousness. The brief questions the House’s motives, describing it as simple “harassment” of the President; claims the subpoena is defective because it has not been ratified by the full House and because the House has not formally begun impeachment proceedings; and finally declares that any new legislation that may arise from this investigation is probably illegal, thereby voiding the need for the subpoena. These legal arguments are simply laughable but they do illustrate just how far Barr will go in order to defend Trump.

That desire to protect Trump was even more clearly illustrated by Barr’s actions after the DOJ received the whistleblower’s complaint. The DOJ illegally overrode the IG’s determination that the whistleblower’s complaint was an “urgent concern”. The DOJ then ignored its legal obligation to refer the complaint to Congress, letting Barr take over the case instead. Then the DOJ arbitrarily decided that there was no campaign finance violation while ignoring its legal obligation to refer any such potential violation to the FEC.

As emptywheel points out, Barr must have bypassed every DOJ investigative protocol in considering the whistleblower complaint. Considering that Parnas, Fruman, and Giuliani were all under current investigation in the SDNY, it would have to take an act of willful disregard for the DOJ not to connect the whistleblower complaint to that investigation. The same could be said of the FEC, which already had Parna and Fruman on its radar for illegal campaign contributions. Barr’s actions basically amounted to abetting the conspiracy that Trump, Giuliani, Parnas, and Fruman were actively engaged in. And then he topped it off by basically acquiescing to Trump’s request to have Barr personally exonerate the President about the July 25th call by sending the DOJ spokesman out to say that the DOJ “reviewed the official record of the call and determined, based on the facts and applicable law, that there was no campaign finance violation and that no further action was warranted”.

Lastly, on the very night that Parnas and Fruman were arrested apparently trying to flee the country by flying to Vienna to have an interview with Sean Hannity, Barr had a rather suspicious personal meeting with Rupert Murdoch. Whether he was warning Murdoch to call Hannity off in that meeting is still unknown. In addition, in yet another example of the distrust of Barr within the DOJ, certain agents within the FBI felt the whistleblower had been improperly shut down and wanted to interview him/her especially as to the national security implications detailed in the complaint. Despite the FBI contacting the whistleblower’s attorney about such an interview, none has taken place, indicating that Barr has presumably and successfully shut down that line of inquiry.

As opposed to the above instances of Barr attempting to block the faithful execution of the law, he is also using the reverse tactic, holding investigations open in order to prevent legal actions from being taken, always in support of Trump. Trump has always targeted those involved in the original Russia investigation. Sally Yates, James Comey, James Baker, Andrew McCabe, and others were all forced out one way or another. McCabe’s firing was especially egregious, occurring within hours of his retirement and providing an extraordinarily swift and exceptionally harsh punishment for the infractions he was charged with. McCabe has fought that firing in court.

All along, Trump has consistently demanded McCabe’s prosecution. And it appears that Barr actually attempted to criminally indict McCabe in late August but the grand jury rebuffed that effort. If the grand jury had declined to indict, that should have been the end of the case. But the DOJ continued to pretend an indictment might be coming. Eventually, McCabe went to court to force the DOJ to indict him or drop the case, something the judge gave the government until mid-November to do. Finally, in November, the DOJ merely released a statement hinting that there will be no prosecution of McCabe. The long process of eventually deciding not to indict McCabe seemed less like a real prosecution and more like an effort specifically designed to prevent a Freedom of Information Act request for documents that may show that investigation that led to McCabe’s firing ignored exculpatory information. That request was being held up because of the potential prosecution of McCabe. If that actually was the case, it makes McCabe’s claim that his firing was part of a political purge by the President more credible.

A similar example of dragging out an investigation to protect Trump comes from New York, where Manhattan DA Cyrus Vance is running a criminal investigation of the Trump Organization related to the illegal hush money payoffs to Trump’s mistresses. Vance began this investigation, or at least tried to, all the way back in August of 2018. However, when he informed the SDNY of the investigation as a matter of normal bureaucratic courtesy, he was told to “stand down”, with the SDNY insisting that they still had an ongoing investigation of the Trump Org. And, indeed, it appeared that the SDNY was conducting a real investigation, offering sweetheart immunity and non-prosecution deals to current CEO Allen Weisselberg and executives with the National Enquirer.

Finally, in mid-July 2019, nearly a year after Vance attempted to begin his investigation, the SDNY announced its investigation had finally concluded. Vance’s team immediately went to work and also subpoenaed the aforementioned business records of the Trump Org. from its accounting firm Mazars. Once again, the DOJ intervened, asking the court to delay any ruling on Vance’s case until the aforementioned House case to get Mazars’ information had been ruled on. That action has so far prevented Vance from getting those documents. It now appears that the DOJ’s intervention as well as the whole SDNY investigation which resulted in those sweetheart deals may have just been a stalling tactic to prevent Vance from running a real investigation. That is because Vance is now running up against a statute of limitations issue. As one of Vance’s prosecutors declared to the court, “delaying enforcement of the subpoena will likely result in the expiration of the statutes of limitation that would apply to some of the transactions at issue in the grand jury investigation”, adding that the DOJ’s involvement in the case was “all the more audacious in view of the fact that, until quite recently and for more than a year, DOJ prosecutors in this very district conducted a highly publicized grand jury investigation into some of the very same transactions and actors that have been reported to be at issue in this matter.”

If Barr’s actions have been egregious over the course of his tenure, his words have been equally offensive. Barr has given three remarkable speeches over the last few months that strike at the core of our democracy, the separation of powers, and equal justice under the law. Those speeches, I’m sad to say, have the whiff of fascism and lay down the legal and moral justifications for a version of white nationalist autocratic rule. In one speech he accused “progressives” of being “willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications”. In that same speech, he lamented that the judicial system “has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically”, further bolstering his case for a more autocratic government.

In the second, he declared, “First is the force, fervor, and comprehensiveness of the assault on religion we are experiencing today. This is not decay; it is organized destruction. Secularists, and their allies among the ‘progressives,’ have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values. These instruments are used not only to affirmatively promote secular orthodoxy, but also drown out and silence opposing voices, and to attack viciously and hold up to ridicule any dissenters…Those who defy the creed risk a figurative burning at the stake – social, educational, and professional ostracism and exclusion waged through lawsuits and savage social media campaigns”. Jeffrey Toobin described this particular speech as “the worst speech by an Attorney General of the United States in modern history…Historically illiterate, morally obtuse, and willfully misleading”.

In the third speech, Barr made his threat to those opposing the unitary executive and its white nationalist autocratic state explicitly clear, stating, “And they [Americans] have to start showing, more than they do, the respect and support that law enforcement deserves ― and if communities don’t give that support and respect, they might find themselves without the police protection they need”.

Attorney General Barr should be impeached. He should probably be disbarred. Neither of those will happen, of course. But it is remarkable just how lawless Barr has been in just the ten months he has held his office. He has lied to the American people. He has involved the DOJ in the President’s personal legal matters in which the DOJ has no interest. He has limited investigations in some instances and extended investigations in others. He regurgitates conspiracy theories provided by the Russians and Fox News for which there is zero real evidence. And he regularly uses the language of fascism when speaking to his white nationalist fellow travelers. All of it is done to personally benefit Trump and expand executive power.

There is still much we don’t know about what he has done and I’ve probably only covered his most egregious acts. His job, which he is no doubt exceptionally good at, is to provide the veneer of legality to the actions of a lawless administration intent on maintaining power. While there are clearly people at the DOJ who mistrust Barr and are working to save its traditional independence, Barr has largely been able to corrupt the agency to his and Trump’s ends. And he has shown he is willing to use the awesome power that the DOJ has to further Trump’s re-election prospects and expand his executive power. If the Senate does not convict Trump of impeachment, it is Barr who may end up being even more dangerous than the President in the months leading up to the 2020 election.